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This month, the National Labor Relations Board issued both a decision and an Advice Memorandum (from 2016) that addressed the issue of the revocation of dues check-off authorizations.

Teamsters Local 385 (Walt Disney World) (Feb. 8, 2016). As noted in another article in this month’s E-Update, advice memoranda contain the recommendations of the Office of General Counsel to the Board on particular issues of interest. In this memo, the OGC found that the union breached its duty of fair representation (under which the union has the obligation to represent the interests of its members fairly, impartially and in good faith) in handling employee requests to revoke their dues checkoff authorizations. The duty of fair representation includes the obligation to deal fairly with employee requests for information regarding matters affecting employment, including dues checkoff.

In the matter at hand, the union improperly failed to respond to premature revocation requests, which included requests for information necessary to properly revoke dues checkoff authorizations. It also breached the duty through its practice of disregarding telephone and in-person requests for information about or assistance with the dues revocation process. It also improperly failed to honor untimely requests that two employees sent after their revocation window closed. The remedy to be sought by the OGC in this case is for the union to refund the employees’ dues effective as of the date their revocation period opened, since they would have timely revoked had the union met its duty to provide the requested information.

Metalcraft of Mayville, Inc., 367 NLRB No. 116 (Apr. 17, 2019). In this decision, the Board addressed dues revocation in the context of the enactment of Wisconsin’s right-to-work law, which curtailed dues checkoff. The Board determined that the employer’s belief that its employees’ dues-checkoff authorizations did not conform to the law was reasonable and its decision therefore to stop deducting and remitting dues to the union was lawful.

The Wisconsin law contains a provision that prohibits requiring employees to become members of a labor organization or pay dues or fees. The law states that any such contract provision is void, and further specifically prohibits dues-checkoff authorizations unless they are revocable by the employee upon 30-days’ notice. Based upon this newly enacted law, the employer believed the current authorizations were invalid and stopped deducting and remitting dues to the union.

The Board first found that the employer’s decision to stop honoring the dues-checkoff authorizations was not an illegal midterm contract modification, as the employer had a “sound arguable basis for its belief that the contract authorized its action” in that the contract specified that the authorization must “conform[] to applicable law.” The new law provides that any contract provision requiring the payment of union dues as a condition of employment is void. In addition, the authorizations did not comply with the newly-required specific revocation language.

The Board also found that the employer did not act in bad faith in unilaterally stopping the deductions. This stoppage was based on the language of the contract requiring the authorizations to “conform[] to applicable law,” and therefore the employer had no duty to bargain with the union over the stoppage.

As a practical matter, however, we suggest that an employer consider its relationship with the union in deciding how to communicate with employees regarding the impact of any state law changes affecting union security and dues-checkoff authorizations. If the employer is trying to forge a positive working relationship with the union, negatively impacting the union’s income stream through the cessation of dues payments may be counter-productive.